from the say-what-now? dept

As was expected, on Tuesday morning, Rep. Mike Rogers officially introduced his new bill concerning bulk data collection by the NSA. Overnight, it appears that Rogers and his staff realized that the originally proposed name of the bill, the End Bulk Collection Act of 2014, was so bogus that they couldn't go forward with that. So the official bill is now called the FISA Transparency and Modernization Act. There are significant concerns about how the section on supposedly "ending" bulk collection might actually allow for even greater searches of data.

But the thing that seemed most ridiculous was that, at the same time Rogers gave his press conference in which he claimed he was ending the bulk data collection by the NSA, he was publishing an op-ed in USA Today claiming the program was "necessary" and "vital" and that was why he was calling for it to end. He kicks it off with an already widely debunked bullshit story about how Section 215 could have stopped 9/11:

On the morning of September 11, 2001, Khalid al-Mihdhar stepped on to American Airlines Flight 77, the flight he would later crash into the Pentagon. Al-Mihdhar might have been in prison, instead of on that flight, if the government knew he had called an al-Qaeda safehouse in Yemen from inside the U.S. seven times before the attacks. The failure to spot phone calls by al-Mihdhar and others led the Intelligence community to begin collecting large volumes of call data records, specifically the number dialed and the date and duration of the call, to determine whether suspected terrorists had contacts inside the United States.

This is simply not true. The NSA was already intercepting calls to that very safehouse starting at least two years earlier. The CIA had been following al-Mihdhar for years earlier. The FBI was aware of him as well. The problem was that the CIA failed to alert anyone that Mihdhar had a US visa and came to the US. So the problem was never that they didn't have the information. It was that the NSA, the FBI and the CIA simply didn't cooperate and share the necessary information. This has nothing to do with the Section 215 bulk data collection.

Since last summer, a great deal has been written about the program's scope, capabilities and legality —much of it wrong. The fact is that the program is legal. It was authorized by Congress and found constitutional many times over. No review of the program revealed an intentional misuse of its authority.

This is not actually accurate. It is not a "fact" that the program is legal. At least one court has said that it is not legal as has the Privacy and Civil Liberties Oversight Board (PCLOB), who found the program to be clearly both illegal and unconstitutional. As for the claims that it was "authorized" by Congress and found "constitutional" many times over, neither is particularly accurate. Mike Rogers himself hid the details of the program from Congressional reps who voted on it, and the FISA court never actually explored the constitutionality of the bulk phone records collection until after the Snowden revelations, at which point it had to cover its ass for all the approvals of the program it had given based on a totally different authority.

We recognize that the Intelligence community must have the confidence of the American people to do its life-saving work. Over the past nine months, we have studied ways to reform the program while maintaining its effectiveness.

WHAT EFFECTIVENESS? Everyone who has explored the program has admitted that they were somewhat shocked to learn that there is no evidence anywhere that the program has done anything useful, ever. To argue that we need to "maintain its effectiveness" is a joke.

Most of the rest of the piece is trying to explain why his new bill is a good idea, even after he opened it with a series of outright lies. Then, apparently because he can't resist, he closes on a misrepresentation as well:

Without NSA counterterrorism tools, Najibullah Zazi might have set off bombs during rush hour in the New York City subway in September 2009.

Except the Zazi case is another one that's been debunked as well. But that doesn't stop Rogers from doubling down on his argument:

Some people may say that's "not enough" when compared to the amount of information the NSA obtains, but we would be shocked if anyone on September 12, 2001, wouldn't have done everything possible to find hijackers like al-Mihdhar and prevent just one terrorist attack.

Yeah, that's a great closer. The argument that anything goes because of September 11th should, frankly, disqualify Rep. Rogers from holding office. Doing "everything possible" would mean abandoning the Constitution that Rogers is supposed to be upholding. We're a nation built on the principle that we don't abridge basic freedoms to "do everything possible" to stop one crime. Yet, Rogers still doesn't seem to recognize this.

from the judicial-misconduct dept

The more people look at the ruling last week by Judge William Pauley saying that the NSA's bulk metadata collection is legal, the more perplexed they become. We noted multiple problems with the ruling last week, but at almost every turn is evidence that Judge Pauley not only came into the court with his decision already set, but that he took the government's claims at face value, even when they were flat-out factually incorrect -- and which could have been easily checked. We already noted that Pauley's argument that 9/11 could have been prevented with such a metadata collection had been widely debunked, but it's worse than that. Pauley's ruling cites the 9/11 Commission report for this particular argument. There's a big problem with that. The 9/11 Commission report doesn't even mention the story that Judge Pauley claims is in the report.

As we've discussed in the past, the NSA and its defenders keep pointing to the story of Khalid al-Mihdhar, a terrorist who was in San Diego and made a call to a known Al Qaeda safe house in Yemen. Except, as was widely reported, the intelligence community had collected all the necessary info and was even intercepting calls between the US and the safe house. The problems was that the CIA "lost" al-Mihdhar, didn't tell the FBI that he was in the US (even though it knew he'd received a Visa) and no one put him on a watch list. None of that would have changed with the metadata collection.

However, as Pro Publica notes, not only does Judge Pauley ignore all of this, he claims the 9/11 Commission report talks about the NSA being unable to "capture al-Mihdhar's telephone number identifier" -- but that's not true:

In fact, the 9/11 Commission report does not detail the NSA's intercepts of calls between al-Mihdhar and Yemen. As the executive director of the commission told us over the summer, "We could not, because the information was so highly classified publicly detail the nature of or limits on NSA monitoring of telephone or email communications.”

So when you have a judge using this as a key part of his ruling, and it appears that he simply did not read the report he's citing, but rather accepted the government's misrepresentation of the report, it should call into question what Judge Pauley was doing with this case. Others are noticing this same thing. The NY Times has an editorial, noting that Pauley's reasoning is "perplexing" in that it assumes that the government never breaks the law:

Judge Pauley's opinion is perplexing in its near-total acceptance of the claim by the government that it almost always acts in accordance with the law and quickly self-corrects when it does not. For example, Judge Pauley said the N.S.A.'s director, Gen. Keith Alexander, was being "crystal clear" when he responded to charges that the agency was mining data from phone calls by saying: "We're not authorized to do it. We aren't doing it."

That shows an alarming lack of skepticism, particularly in light of the testimony of James Clapper Jr., the director of national intelligence, who falsely told the Senate Intelligence Committee in March that the N.S.A. was not collecting any type of data at all on hundreds of millions of Americans.

It is also incorrect to say, as Judge Pauley does, that there is "no evidence" that the government has used the phone data for anything other than terrorism investigations. An inspector general's report in September revealed at least a dozen instances in which government employees used the databases for personal purposes.

Over at the New Yorker, Amy Davidson, goes even deeper in exploring the differences between Judge Pauley's ruling and Judge Leon's ruling (which found the NSA's metadata collection unconstitutional), and has pointed out multiple other "perplexing" elements in Pauley's ruling -- including the idea that the more completely the NSA spies on Americans, the more legal the program would be under his bizarre legal interpretation.

And yet if Pauley's opinion offers a single instruction for the N.S.A, it is this: go big. The more people whose data was swept up, the less this judge apparently thinks he has to say about it. Reading his fifty-four-page opinion, one wonders whether, if the intelligence community could only find a way to violate every single American's rights, and tell a story about how that protected them, he would look around and find that no one had been hurt. "This blunt tool only works because it collects everything," he writes.

And yet, "collect everything" is exactly what the 4th Amendment was designed to not allow. It was put in place to end the concept of general warrants for the collection of everything. It's this very concept of "collect everything" that is why Judge Leon noted that the "third party doctrine" as established in Smith v. Maryland makes no sense to apply to this bulk metadata collection.

Furthermore, Davidson also notes how Pauley uncritically accepts the feds' blatantly misleading spin that even with all the metadata collection only a very small number of people are spied upon. Judge Leon actually breaks it down and does the math, while Pauley doesn't bother:

The contrast can be seen in the two judges' responses to the way the government queries its database of phone records—those of almost every American. It starts with a "seed"—maybe a phone number of someone it suspects (and only suspects) is connected to a foreign terrorist group. It then makes three "hops": looks at all the numbers that the seed number has called or been called by, each number that those have been connected to, and each that those have been connected to. Leon does some calculations and sees that the number of phone numbers gets big very quickly (if you call a hundred friends, and they each call a hundred friends…). They also get attenuated: he cites the example of a suspect calling a pizza place, and the way every other pizza orderer is then inveigled. (I wrote about this “Domino's hypothetical” when Judge Leon's ruling was issued.) But just as interesting was Leon's response to the government's note that it has done this with three hundred seeds, yielding a number of American phone records “substantially larger than 300, but is still a very small percentage of the total volume of metadata records.”

The first part of this assertion is a glaring understatement, while the second part is virtually meaningless when placed in context…. It belabors the obvious to note that even a few million phone numbers is “a very small percentage of the total volume of metadata records” if the Government has collected metadata records on hundreds of millions of phone numbers.

Pauley, looking at the same statement, repeats it primly and uncritically twice: “only a ‘very small percentage of metadata records…’ ” He is just relieved that terrorists, or those connected to them even by “filaments,” might be found. (Last week, a Presidential review panel found that the program was not, in fact, all that useful.)

So there are huge problems with Pauley's decision. Not only does he quote a report that doesn't say what he claims it says, he further supports his argument by accepting a claim that another judge quickly showed to be clearly false just by doing some simple math. So far, we've got Judge Pauley failing to actually read or do math but simply accepting the government's claims of what the report and the math say, when anyone who's actually looked at either know the government is not being honest.

You would think that a judge would actually review the source material, rather than accept one party's misrepresentations. Unfortunately, Judge Pauley appears to have failed in his job to do the most basic checking of what he was told. And, because of that, we now have a horrible ruling on the books.

from the don't-let-her-get-away-with-it dept

We already wrote about Dianne Feinstein's highly questionable claim that we need to continue to allow the NSA to collect data on every single phone call in the US because it might have helped stop 9/11. As we noted, that claim didn't make that much sense, since it's based on the idea that a terrorist named Khalid al-Mihdhar made a phone call from the US to a known phone number for a safe house in Yemen, and the intelligence community missed it. As we noted, none of that explains why a purely domestic collection of phone call data makes sense, since this was an international call and since the recipient number was already known, it would have been possible to just track that number, rather than all numbers.

The ACLU's Michael German goes through a complete and total debunking of Feinstein's claims based on the actual history of what happened. After reading this, pretty much the only conclusion you can be left with is that Senator Dianne Feinstein is either totally misinformed over publicly known information about what the intelligence community had done (which would be quite incredible given her position as the head of the Senate Intelligence Committee) or she is flat out lying to protect her friends in the intelligence community.

There are a few problems with using Mihdhar as the poster child for new domestic spying programs, however. The intelligence agencies, which normally benefit from being able to keep secret any facts that might undermine their arguments, seem to have forgotten that the 9/11 Commission, the Justice Department Inspector General and the intelligence committees in Congress published in detail what the government knew about Mihdhar before the attacks. It turns out that the NSA was intercepting calls to the al Qaeda safe house in Yemen as early as 1999, and both the FBI and CIA knew Mihdhar was an al Qaeda operative long before the 9/11 attacks.

The safe house was discovered during the FBI’s investigation into the 1998 bombings of two U.S. embassies in East Africa, and had been monitored by the NSA and CIA ever since. The inspector general’s report couldn’t be clearer that the intercepts were being broadly shared:

“The NSA’s reporting about these communications was sent, among other places, to FBI Headquarters, the FBI’s Washington and New York Field Offices, and the CIA’s CTC. At the FBI, this information appeared in the daily threat update to the Director on January 4, 2000.”

Intercepted communications from this location allowed the CIA to follow Mihdhar to an al Qaeda meeting in Kuala Lumpur in January 2000. Though they lost him in Thailand, as Mueller suggested, the CIA knew he had a visa to enter the United States and that his travel companion and fellow hijacker, Nawaf al Hazmi, had a plane ticket to fly to Los Angeles.

The CIA, however, failed to place Mihdhar on a watch list or “notify the FBI when it learned Mihdhar possessed a valid U.S. visa,” according to the 9/11 Commission report. The inspector general’s report revealed that five FBI officials assigned to the CIA Counterterrrorism Center viewed CIA cables indicating Mihdhar had a U.S. visa. A week after the Kuala Lumpur meeting, Mihdhar and Hazmi flew into Los Angeles International Airport and entered the United States without a problem. After their entrance, the NSA would intercept at least six calls from the al Qaida safe house in Yemen to the United States, according to the Los Angeles Times.

In other words, the intelligence community clearly had everything it needed prior to 9/11. It just failed to use it. That has nothing to do with the dragnet data collection that Feinstein is claiming would have somehow caught Mihdhar.

Frankly, the other problem here is the Wall Street Journal allowing Feinstein to post that op-ed when it clearly includes things that are untruthful. I recognize that there's a difference between an oped and reporting, but a newspaper should still challenge an oped author when they write things that are easily proved false. Instead, the WSJ let Feinstein publish her clearly bogus article in support of the dragnet, despite the many problems with it. As German notes, these efforts to lie to the American public actually undermine Feinstein's case:

These repeated efforts to mislead Congress and the American people only make the case more strongly that the government’s surveillance authorities need to be sharply curbed with strong legislation that ends the bulk collection programs, protects Americans’ private communications and adds more transparency and public accountability to these activities. Americans have the right to truthful information about their government’s intelligence activities, and the current oversight system, which depends on whistleblowers willing to risk jail, certainly isn’t working.

If they can't support their program with the truth, it seems pretty clear that there's no reason to support the surveillance program at all.